State v Henry [2015] PGNC 198; N6094 (23 September 2015)

N6094

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.1450 & 1451 OF 2014

THE STATE

V

ROGAN HENRY & BEN WARTIN

Kokopo: Lenalia, J.
2015: 10th, 18th & 21st & 23rd September

CRIMINAL LAW – Aggravated Rape – Pleas of guilty – Factors for consideration – Sentence s.347 (2) of the Criminal Code, Ch. No.262

CRIMINAL LAW – Aggravated Rape – aggravating factors – Rape by five or six men – Others have not been arrested – Worst type case – Mitigations - first time offenders – Factors for consideration – Section 7(1)(a) of the Criminal Code.

Cases cited.

Winugini Uragitaru v R [1974] PNGLR 283
The State v Peter Kaudik [1987] PNGLR 201
John Aubuku v The State [1987] PNGLR 267
The State v Kenneth Penias [1994] PNGLR 48
Thomas Waim v The State (1996) SC 519
James Mora Meaoa v The State [1996] PNGLR 280
Andrew Uramani & Ors v The State [1996] PNGLR 286
Lawrence Indemba v The State (1998) SC593
The State v Dii Gideon (2002) N2335
State v Eki Knodi, Mike John, Allan Nemo, Koli Sop Kondi and Isaac Sip (No.2) (2004) N2543
The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (29.4.2004) N2569
The State v Emanuel Papake & 4 Others (12.7.2011) Cr. No. 1131 of 2010
The State v Tokau Malagene & Johnson Robert (11.10.2013) Cr. No. 1180 of
2011
The State v Tommy Koi & 2 Others (15.8.2014) Cr.Nos.828, 284, 289 & 830 of 2013

Counsel:

Ms. M. Tamate, for the State
Mr. E. Apis, for the two Accused

23rd September, 2015

1. LENALIA, J: The two accused pleaded guilty to one count of rape contrary to s. 347 (2) of the Criminal Code (as Amended). This crime was a gang rape by the two prisoners and a group of men. Three aggravations are pleaded on the body of the indictment. They include, the two accused were in company of other persons, secondly, that immediately before the crime was committed they threatened to use dangerous weapons namely stones, long bush-knives and thirdly that, the two and others confined the victim during the commission of the offence.

Brief Facts

2. The charge contained in the indictment states that on 9th day of August 2014, at Kabaga plantation between the hours of 9pm and 10pm, the complainant Elmah Goliath and her four friends Donald Ruaba, Ezekiel Nerius, Misionty Nerius and Billy Mapup were returning from town when they were dropped off at Menebonbon village. To reach their village or villages, they had to go down through a mountain ridge to go through to Bilur Primary School. As they were descending the hill, a group of men came after them, they stood on the road and shone torches at them.

3. As they went to the corner of that road, the men who were torching them went through a short cut road leading to Bilur where they stood on the road and waited for the victim and her friends. The group saw that there was a big group of persons standing on the road so they decided to avoid contact with them. The victim and her friends turned toward Kabaga plantation and crossed the bridge, but the group followed the lower road and again blocked off the victim and her friends. The victim and her friends went into the plantation compound premises and fearing anything might happen, they brought the victim to the house of an old woman by the name of Nanuk. The four boys who were with the victim told Nanuk of what was happening and as soon as they went out from the house, Nanuk locked the door.

4. As the victim's friends stood around outside Nanuk's house, the two prisoners came and told Ezekiel that, they were also chased by a group of men. The two left the victim's friends and went back to the road where they took a big group of men with them and came and gathered around Nanuk's house. The group started flashing their torches into the victim's friends' eyes causing great panic and blurry eyes.

5. The victim's friends noted that, the group had with them long bush-knives and they started to chase Ezekiel, Donald, Bill and Misionty by throwing stones at them. The facts show that, Donald stood there and faced them. A man from that gang started to attack Donald by swinging the bush-knife at him. The long bush-knives were swung at him several times but he managed to avoid the blows.

6. While Donald was being attacked, some members of the gang broke the door to Nanuk's house. When the gang members entered the house, the victim feared and started to cry. She sat close to Nanuk and held onto her hands. But the prisoner Rogan came and pulled her away from Nanuk and a gang member placed a long bush-knife on her neck and threatened to chop her and they pulled her out from the house and led her away to the main road. The gang took her further away into the Balsa plantation where they undressed her and took turns in raping her. A member of the gang Kepas Bualten took the lead on raping Elmah followed by Rogan. She stood up and was about to get dressed when the rest of the gang members came and took turns in raping her. In all, there may have been about 6 or 7 men who raped the victim that night.

Addresses on Allocutus. (21.9.15)

7. Prior to administration of allocutus, Ms. Tamate presented antecedent reports of the two prisoners. They would be between 18 and 22 years of age. Both offenders don't have any previous convictions.

8. Rogan Henry. Prior to hearing his lawyer, this prisoner said, he is sorry for what he did. He said sorry to the victim and the Court. He asked the court to consider he is a first time offender and asked if he could be given probation.

9. Ben Wartin. In the case of Ben, he also said sorry for what he did to the complainant. He said he now realizes that what he did is quite bad. He asked the court to consider, he is the first time offender and asked for leniency on sentence.

Counsels' Addresses on Sentence

10. For the two prisoners, Mr. Kaluwin stood in for Mr. Apis and asked the court to consider the prisoner's guilty pleas to this serious charge. Counsel submission is that, this case was not the worst type case as his clients were influenced by others who were all under the influence of liquor. Counsel asked the court to consider the fact that only these two prisoners will be punished while another 6 or so others have not been brought to justice.

11. Counsel asked the court to consider the prisoners' early admissions to the crime they committed. Their previous good characters and the fact that they are very young persons and thus submitted that due to their youthfulness special consideration be given to them.

12. Ms. Tamate, counsel prosecuting this case spoke to her 8 page written submission. Counsel submitted that this case can be regarded as one of the worst type cases of rape because it was aggravated by the use of force, physical violence, and the two prisoners were in company of others. Counsel referred to the Criminal Code (Amendment) Act 1013 which amended the penalty provision of maximum life imprisonment to the death penalty.

13. Counsel referred to a number of National Court cases at page 4 of the written submission where Judges have imposed long term of imprisonment for aggravated rape. Counsel submitted on aggravations such as the instant case which was a pack rape, dangerous weapons were used like stones and dry coconuts and a knife was place on the victim's neck. That the case may have involved pre-planning. Counsel asked the court to consider the victim sustained so much injury that night and that a sexually transmitted disease was transmitted to the victim. Counsel submitted that a sentence imposed by this court should have both punitive and deterrent impact. She asked the court to consider the victim's impact statement.

Application of Law

14. The provision under which the prisoners are charged has been amended by addition of a new Section. The new section provides for aggravated rape. The offence of rape is defined by s.347 (2) of the Criminal Code in the following terms:

"(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years."

(2) Where as offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19 to life imprisonment." (Emphasis added).

15. According to the facts of this case, this crime was committed with aggravations. I will refer to those aggravations a little later. Pursuant to the latest Criminal Code (Amendment) Act 2013, the maximum penalty for aggravated rape now is death. I don't know if the new amendment has come into operation or not.

16. Sentencing principles for the offence of rape has been increased since the Supreme Court decision in the case of John Aubuku v The State [1987] PNGLR 267, or that of The State v Peter Kaudik [1987] PNGLR 201. This court endorses what the Supreme Court said in Thomas Waim v The State (1996) SC519 that there had been escalation in the prevalence and seriousness in the commission of rape cases. Today, rape is becoming too frequent and groups of people do engage in inhuman treatment and breach of the dignity due to women of this nation.

17. The crime of rape has always been serious. Judges of the National Court who have sentenced offenders to long terms of imprisonment have expressed their views in many different ways. Even, various Supreme Court benches have expressed similar sentiments on cases of those offenders who have appealed to the high Court of this land.

18. I have referred to the following cases both by the National Court cases where Judges of this Court have expressed serious concern on the kind of attitude of men who take advantage of women because women are weaker than men and they think they can abuse them no matter what comes. In the National Court case of The State v Kenneth Penias [1994] PNGLR 48, Injia J (as he then was) said:

"Rape constitutes an invasion of the most intimate part of a women's body. Women become objects of sex, and sex alone, to men like the prisoner who prey upon them and rape them. But women are, after all, human beings just like men. They have rights and opportunities equal to men, as guaranteed to them under our Constitution. They are entitled to be respected and fairly treated. They have all the right to travel or in groups, in any place they choose to be at any time of the day. At times, because of their genders, with which comes insecurity, they need the protection of men. Women in towns and villages are living in fear because of pervasive conduct of men like the prisoner. Our women in the small communities, in the villages and remote islands, in small towns and centres, who once enjoyed freedom and tranquility, are living under fear and feel restricted. That is why the Supreme Court in Aubuku's case said that people who commit rape must be punished with a strong punitive sentence."

19. Earlier, Amet J, (as he then was) in The State v Kaudik [1987] PNGLR 201quoted a relevant passage from the Criminal Law Revision Committee's 15th Report on Sexual Offences where the Committee said at paragraph 2.2:

"Rape involves a severe degree of emotional and psychological trauma; it may be described as a violation which in fact obliterates the personality of the victim. Its psychological consequences equally are severe. The actual physical harm occasioned by the act of intercourse associated violence or force in some cases degradation, after the event, quite apart from the woman's continuing insecurity, the fear of venereal diseases and pregnancy. Rape is particularly unpleasant because it involves such intimate proximity between the offender and the victim and it involves an act we as a society attach considerable value."

20. I adopt the concerns raised in the above cases and apply such concern on the instant case. These concerns do not end there. The Supreme Court has also expressed similar concerns on the abuse of women and girls where appeals have been unsuccessful. Women and young girls are entitled to enjoy the freedom and tranquility that PNG used to enjoy some 40 years or so ago. In our time, women actually do live in fear and are restricted in their movements. In the case of James Mora Meaoa v The State [1996] PNGLR 280, the Supreme Court expressed such concern in the following terms:

"We also agree with the learned trial judge when he says that men should not feel able to take advantage of any girl, which we extend to any female person, young or old, who happens to be by, be they on public road, in the gardens or as here on the coast. We agree that the right of all persons, female as well as male not to be assaulted must be clearly stated by this court. The Constitution speaks of respect for the inherent dignity of all people and this clearly extends to all female population regardless of age or background."

21. Later, in the case of Lawrence Indemba v The State (1998) SC593, the Supreme Court there expressed very serious concern about the crime of rape.

"The crime of rape is a violent and prevalent offence. The seriousness of the crime and abhorrence of the society have been repeatedly re-iterated in many cases by this Court and the National Court including the much celebrated case of John Aubuku v The State, ante. In recent times, the Supreme Court has expressed the need to review the sentencing guidelines for rape set out in John Aubuku v The State with a view to increasing the sentences given the prevalence of the offence and the society's demand for tougher sentences: see James Meaoa v The State sc 504 (1996), Thomas Waim v The State (1997) SC 519, and Sinclair Matagal v The State Unreported Judgment in SCRA No. 95 of 1996 (4 June, 1998). These and many other cases show that sentences for plea to rape with aggravating features such as young age of victim, injury to victim, abduction and use of force or threatened force attract sentences in the range of 14-18 years".

22. The crime that you two committed together with your accomplices upon the victim is very serious indeed. To give some highlight on sentences meted out by Judges of this Court for gang rape cases, I cited the following cases. In The State v Dii Gideon (2002) N2335, the trial Judge Injia J (as he then was) imposed a sentence of 25 years for a pack rape by three men on a pregnant overseas visitor with threats of violence intimidation using weapons and further her home was invaded and robbed.

23. In The State v Eki Knodi, Mike John, Allan Nemo, Koli Sop Kondi and Isaac Sip (No.2) (2004) N2543 the five offenders were sentenced to sentences of 18, 20, 22, and 25 years for a gang rape by ten men. They were sentenced according to the degree of violence and their participation in the crime. There were several rapes committed on the victim. In the case of The State v Donald Poni (2004) N2663, the Judge, Justice Kandakasi imposed a sentence of 19 years on a member of a five member gang which abducted and raped the victim. That case involved breach of trust situation.

24. In The State v Garry Sasoropa, John Aremeiko and Matthew Melton (No.2) (29.4.2004) N2569, it was a pack rape. The offenders were sentenced to varying terms of imprisonment. The first accused was sentenced to 25 years, the second to 22 years and the last offender received 18 years but was partially suspended with strict conditions. Judges of this Court have expressed concerns in various ways in relation to men's behavior toward women and girls.

25. In this Province, in The State v Tokau Malagene & Johnson Robert (11.10.2013) Cr. No. 1180 of 2011, after the prosecution had called three witnesses and certain court Exhibits were tendered, a submission of no case to answer was made, the Court ruled there was a case for them to answer, they changed their not guilty pleas to guilty. They were re-arraigned and pleaded guilty. They were sentenced to 15 years.

26. In The State v Emanuel Papake & 4 Others (12.7.2011) Cr. No. 1131 of 2010, the five co-accused were found guilty of abducting the victim after they threatened, intimidated and forced her to follow them to where she was repeatedly raped until the morning of the next day. The first accused received 20 years while the others got 15 years imprisonment each. In that case, this Court considered the principle of their role of participation in the crime.

27. In The State v Tommy Koi & 2 Others (15.8.2014) Cr.Nos.828, 284, 289 & 830 of 2013, the three offenders abducted the victim from a room used by the friend of her boy friend at the Coconut Product Toboi Mill compound near Rabaul, where they started to rape her in that room and they forced her out to go accompany them to the hill overlooking Rabaul town. They repeatedly raped her until the morning. She escaped when day break came. They pleaded not guilty and their case went to trial. They were found guilty and each sentenced to 25 years imprisonment.

28. The crime you two committed is very serious because such practice infringes against privacy of any human person as enshrined by the Constitution. Pursuant to s.49, every human being has the right to reasonable privacy, then s.42 (1) (a) of the Constitution says that no one must be deprived of his or her personal liberty. A number of aggravating circumstances appear from the facts of this case. First you two committed this offence whilst you were in company of each other with those who have not been arrested.

29. Secondly, the door to Nanuk's house was broken down then you physically pulled the victim out from the house and forced her by pulling her by her hands to accompany you and other to where you took turns to rape her. It is possible that some of you had sex with her twice. You abused her by swearing at her and after the five or so of you have completed the rape upon her, you told her to go through the main road. She could not walk properly as she suffered pains on her groins.

30. Both prisoners are first time offenders. You have expressed remorse and you each asked for mercy and leniency. You asked for good behaviour and that you be placed on good behaviour bonds. In Kaudik's case at p 205 (supra), the Court held that the crime of rape is always a serious crime which calls for immediate punitive custodial penalty other than those cases where wholly exceptional circumstances are or may be found.

31. The victim of this case was abducted from the house after the door was broken down and she was forcefully, taken out by physical force and led to various places in the Balsa plantation where she was repeatedly raped by the gang members. The victim at that time was attending George Brown High School. She was then 18 years old but what you did to her will detrimentally affect her studies and her future life. Not only that, it was a shock and indeed very bad and sad news for the parents of the victim. You two also have created shock to your own parents and your community. This was a gang rape aggravated by you two being in the company of others who committed this very serious crime. Added to this, I consider the terms of the Impact Statement. The victim is back in school repeating Grade 10 this year.

32. I must endorse the prosecution counsel's submission that, a penalty that should be imposed on the instant case should be in the ranges of sentences so far imposed for gang-rape cases. Taking all of those factors and principles into account, I consider your degree of participation. You two acted together and you have pleaded guilty that you each were together with other offenders who have not been caught. In your case, I do not consider it appropriate for the Court to treat you differently because the facts to which you pleaded guilty established that, each of you played major roles in carrying out the rape.

33. Having come to that conclusion, you two will receive equal treatment meaning your sentence will be the same as none of you played any passive roles. It is established law that, co-offenders of an offence should receive the same treatment if there is nothing warranting a different treatment. The different roles played by co-offenders in the commission of an offence, dictates different treatment of the offenders. This means an offender who plays a major role is liable to receive a higher penalty than the one who played a lesser role:Thomas Waim v The State and The State v Kaudik (supra).

34. The law clearly is that, co-offenders of an offence should receive the same treatment if there is nothing warranting a different treatment. The different roles played by co-offenders in the commission of an offence, dictates different treatment of the offenders. This means you two played the same role and you should be punished the same. (See Winugini Uragitaru v R [1974] PNGLR 283 & Andrew Uramani & Ors v The State [1996] PNGLR 286). You were both actively involved in raping the victim.

35. In this case, I consider the prisoners plea of guilty to this serious charge. I consider you are first time offenders. Your case may be similar to the case of The State v Tommy Koi & 2 Others (supra) where the three offenders were convicted after a trial and sentenced by this court to 25 years imprisonment because they each played active parts in committing the crime of rape. Having considered the sentencing guidelines and principles on sentence in gang rape cases, I consider that the appropriate penalty you should receive is 20 years imprisonment. You are each sentenced to 20 years imprisonment. The time spent in custody shall be deducted. You will serve the balance.

______________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the two Accused